Judge John P. O’Connell steps through the facts and law to arrive at verdict

As mentioned in my prior post, Cleveland Police Officer Michael Brelo, who is white, has been found not guilty of all charges in the shooting deaths of Timothy Russell and Malissa Williams, both black. The shooting followed reports of shots fired at police from Russell’s vehicle, upon which Russell, with Williams as passenger, lead 62 (sixty-two!) police cars on a 22-mile, 100-mph pursuit through the city of Cleveland. (Below is video of the Judge’s closing rationale–it’s ~35 minutes long, for a text summary see my notes below.)

Ultimately the chase ended in a school parking lot outside the Cleveland city limits, with Russell using his vehicle as a battering ram against the police cruisers. Faced with this imminent threat of death or grave bodily harm, the 13 officers on scene fired 137 rounds at the vehicle over a 20 second period, mortality wounding Russell and Williams.

Of the 137 rounds fired over those 20 seconds, all parties agreed that the first 122 bullets fired, and all the bullets fired during the first 12 seconds, were legally justified.

The only legal dispute was over the last 15 bullets fired by Brelo during the last 8 seconds, during which Brelo was standing on the hood of Russell’s vehicle and firing through the windshield. (Notably, during these last 8 seconds other officers were also still firing into Russell’s vehicle.)

Brelo was charged with two counts of voluntary manslaughter, and two counts of the lesser included offense of felonious assault.

As a bench trial, Judge John P. O’Connell was the finder-of-fact rather than a jury. Remarkably, prior to announcing his verdict this morning the Judge spent over an hour stepping through all of the evidence of the case, and then explaining how he applied the law to this evidence to arrive at his verdict.

My notes below the horizontal line were taken as the Judge presented the latter part of this discussion to the court. I claim them to be as generally accurate as diligent note-taking can make them, but I do not claim them to be verbatim or completely without error.

For each of these counts, the Judge found that they had not been proven beyond a reasonable doubt.

The reason is that both Russell and Williams had received fatal shots from other officers, whose shots had been deemed lawful. Thus, even though at least some of Brelo’s shots certainly caused mortal injury, it cannot be said that Brelo was responsible beyond a reasonable doubt for their actual deaths because Russell and Williams would have died from the other officers’s lawfully fired bullets even absent Brelo’s fatal shots.

Having found that the State had failed to prove Brelo guilty beyond a reasonable doubt on the manslaughter charges, however, we are still left with the lesser included charges of felonious assault.

Although Russell and Williams would have died regardless from other officers’ shots, the Judge found that they each still alive–even if already mortally wounded–when Brelo fired at least some of his shots into them, thus forming a basis for felonious assault.

Indeed, Judge O’Connell explicitly found that the State had proven beyond a reasonable doubt that Brelo was guilty of felonious assault. Brelo was thus found not guilty on the two voluntary manslaughter charges.

Nevertheless, this does not end the matter, because Brelo has raised the affirmative defense of justification (e.g., self-defense).

In Ohio (indeed, only in Ohio), the affirmative defense of justification must be proven by the defense by a preponderance of the evidence. If this is done, however, the defendant is excused from criminal sanction for what would otherwise have been a crime.

Thus if Brelo could prove justification by a preponderance of the evidence in the context of the felonious assault, he would be found not guilty of those charges despite the fact that the State had otherwise proven those charges beyond a reasonable doubt.

Judge O’Connell then began to step through law governing justification in Ohio.

Apprehension of a suspect by the use of deadly force is a seizure under the 4th Amendment of the US Constitution. Evaluating the reasonableness of this seizure requires considering the totality of the circumstances, in the light and facts of the circumstances.

In the face of an imminent threat of serious physical harm to the officer or others, it is not constitutionally unreasonable to effect a seizure by the use of deadly force.

An objectively reasonable perception of this threat of death or grave bodily harm is the minimal requirement before deadly force may be used.

Reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with 20:20 hindsight.

The calculus must take into account the fact that police are forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.

So the question is did Brelo have an objectively reasonable fear that Russell’s car represented a threat of death or grave bodily harm to the officers or to others.

Brelo was aware that there were reports that someone in the vehicle had “popped off a round” at police, that the drive (Russell) was angry and pointing a gun out the window, reports that the driver had a gun, reports that the driver was pointing a firearm, reports that Williams (the passenger) was possibly loading a weapon.

Brelo was also aware of the length in distance and time of the chase. He knew that many other police cars besides his own were in pursuit, but Russell still would not stop. Brelo knew Russell had gone over 100mph, and had ignored dozens of traffic controls. All of this would have made him wonder why people in the car were so desperate to escape.

Brelo had been led through parts of Cleveland unfamiliar to him, and the chase ended in a separate city altogether.

The parking lot where the chase ended was in a dusty, dirty area where a driver could only see the car in front of him.

Brelo heard radio calls that shots were fired, and another radio call that there was no way out of the parking lot.

When Brelo stopped his patrol car, Russell was barreling at him with his own vehicle, ultimately smashing into the patrol car beside Brelo’s.

Brelo thought he saw guns in the suspects’ hands, and then gun fire erupted.

Brelo perceived an imminent threat of death or grave bodily harm to himself and other officers, and he decided to use deadly force to seize the occupants, Russel and Williams.

This same decision, Judge O’Connell emphasized, was made by all of the other 12 officers on the scene.

Judge O’Connell found by a preponderance of the evidence that Brelo’s decision to use deadly force on Russell and Williams was based on probable cause that they presented a serious risk of death or grave bodily harm to the officers and others. This use of deadly force by Brelo was constitutionally reasonable.

Indeed, this decision was reasonable despite the fact that we now know that there was no gun in the car, and that Russell and Williams were not the origin of the gun shots fired.

Reasonableness must be evaluated for objective reasonableness based on the information the officer had when the conduct occurred. If the perceptions were objectively reasonable then his use of force was not unconstitutional, even if it turns out he was mistaken.

Judge O’Connell’s conclusion that Brelo was justified in initial use of deadly force should come as no surprise, as it was the same conclusion arrived at by the State’s own use-of-force expert.

The only real dispute between the defense and prosecution is whether Brelo’s proper decision to use deadly force continued throughout the entire of the shots firing or stopped 8 seconds before he stopped shooting when he mounted the car’s hood and continued firing.

The State’s use of force expert witness Catsaris (phonetic spelling) testified that many of the other officers on scene who were shooting in this same time period reasonably a threat justifying their multiple shots at Russell and Williams. This belief was reasonably held, in the expert’s opinion, regardless of these officer’s tactical mistakes.

So, Judge O’Connell asks, where was it that Brelo was supposed to have run afoul of the US Constitution’s 4th Amendment? The claim was that he did so by going on the hood of his own patrol car, then the patrol car (#238) into which Russell had rammed his own vehicle, then onto the hood of Russell’s vehicle.

The State’s expert’s rationale for this conduct violating the 4th Amendment was that Brelo was taking action for which he was not trained by the police department, which is not recognized by that department, and which was not safe either for himself or the other officers present.

Judge O’Connell noted that Catsaris (sp?) repeatedly based his criticisms of Brelo’s action on the basis that it was contrary to training, and not on the basis of the harm that resulted to Russell and Williams from those actions.

Asked if it would have been reasonable for Brelo to continue firing at Russell and Williams had he stayed behind cover (as many of the other officers on scene did actually do), Catsaris testified that in his opinion such conduct would have been reasonable.

So Catsaris’s opinion was based not on Brelo’s perception of the threat of death or grave bodily harm being unreasonable, but only on the tactical actions he took to stop the threat were reasonable. Catsaris focused on the location from which the shots were fired, not on the firing of the shots themselves.

Those known facts are first that the car was still running, and under Brelo’s observation the occupants were still moving. Up until that point the chase had taken place over 22 miles of driveways, parking lots, roads, and highways, and Russell had shown no intention of giving up. Russell had just rammed patrol car #238, but his car was not so wedged by #238 that his vehicle could not still be used as a weapon.

During the last 8 seconds in question, at least three other officers were not convinced that the deadly threat was over, as we know from the fact that these three were also still firing at Russel and Williams.

Brelo was in a strange place at night, surrounded by gunfire, sirens, flashing lights, and both Brelo and officer Moore had fired through their own windshields at Russell and Williams because they believed they were about to be shot and killed.

Brelo did not fire too quickly or at someone who appeared to be unarmed, he did not fire at someone who was walking or running away.

An adversarial trial has proved over the centuries to be an effective way to find the truth. If the ideal way is to step into Brelo’s shoes and see those 8 seconds the way he did, it’s not the artificial environment of the court room. Still, that is what the law requires.

Judge O’Connell explicitly rejected the claim that within 12 seconds it was presently patent that a reasonable police officer in Brelo’s position would have decided that the threat had stopped, and therefore Brelo’s entire use of force was an objectively reasonable response to the reasonably perceived threat of death or great bodily harm.

In conclusion, Judge O’Connell found that the State did not prove beyond a reasonable doubt that Brelo had knowingly caused the death of Russell and Williams because they failed to prove the necessary causation, so Brelo is not guilty on counts 1 and 2 [both charges of involuntary manslaughter].

The state did prove beyond a reasonable doubt the lesser included charges of felonious assault, that the defendant did knowingly cause serious bodily harm, but the defendant in turn proved by a preponderance of the evidence that he was legally excused from liability for those harms because he was constitutionally privileged to use deadly force to respond to an objectively reasonably perceived threat of death or grave bodily harm.

Judge O’Connell thus found Brelo not guilty of the lesser included offenses of felonious harm.

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A great case (to keep in your back pocket) is Martinez v Illinois 572 U. S. ?(2014) 13-5967. The unanimous per-Curium decision uses the words manifestly erred” in reference to the Illinois Supreme Court. The per-curium gives a very concise summary of the Supreme Court’s view on judgments of acquittal. Of course in this case there was no jury — but there was jeopardy.

The money quote for the decision:

Jeopardy attaches when “a defendant is ‘put to trial,’” and in a jury trial, that is “when a jury is empaneled and sworn.”

The tone might get the attention of even some of the most recalcitrant trial judges.

I thought everyone knew that (1) per curium means unsigned; (2) per curium must be unanimous; & (3) per curium opinions are written by law clerks and circulated to the justices solely for possible disapproval.

While they have the same force of law as signed opinions, I would not want to have to use one as my main precedential authority.

Indeed Per-curium decisions are issued in the name of the Court and are unanimous. Lyle Denniston agrees with you — the result was obvious. Sadly the Illinois Supreme Court did not think the result was obvious. Whether they are written by law clerks or a Justice is a mystery to me.

I read per-curium nature of this decision and the words manifestly erred as a slap down of the Illinois Supreme Court. (I doubt a law-clerk would use the words manifestly erred in a writing without clear instruction from the Court). SCOTUS is in effect saying to the Illinois Supreme Court that it is so wrong on the law that SCOTUS is not even going to give Illinois the dignity of a signed opinion. It is a stinging summary reversal done without oral argument.

The per-curium provides a good summary of the relevant law and indicates the obvious finality of a judgment of acquittal. You are of course free to refrain from citing this case and cite other cases in your practice.

If you don’t like Martinez v Illinois you can cite Evans v Michigan 133 S. Ct. 1069 – Supreme Court 2013 (authored by Justice Sotomayor). In that case, the SCOTUS held double jeopardy barred retrial after the trial Court entered a directed judgment of acquittal based on a mistake of law not fact.

Of course Ohio can appeal the Brelo verdict. I think recent Supreme Court jurisprudence makes such an appeal unwise. A new prosecution by the United States is the only practical remedy.

The Army would have given him a medal. That took guts… and given the specific circumstances, it sure gave him a reliable angle of fire.

I think that when push comes to shove, ramming a car into a police vehicle at the end of a long chase establishes use of a deadly weapon well enough that the presence or absence of a gun is besides the point.

“The report, released Friday by the Cuyahoga County Medical Examiner’s Office, said 43-year-old Timothy Russell and 30-year-old Malissa Williams both tested positive for cocaine.

The lab report for Russell showed his blood contained cocaine and blood alcohol content of .131. A test of his urine confirmed the cocaine and also showed nicotine in his system.

For Williams, the toxicology report showed she had caffeine and cocaine in her blood. The urine test confirmed the cocaine and also tested positive for nicotine and marijuana.

An investigator with the ME’s office said the presence of anhydroecgonine methyl ester in both of their systems indicates that the cocaine may have been smoked instead of snorted, as that chemical is a byproduct of cocaine being smoked.”

So… A series of very, very bad choices, some of them influenced by the choices just up-stream.

I read on the facts report that Brelo was in the Marines. I learned a lot about the Marines after my son became one. When I was in the Army I was taught to take cover and lay down cover fire while a group rushed the contact. Marines are taught to go to contact immediately. Brelo’s Marine training took over and he went to contact.

I don’t think it’s OTT. I just think ammo was wasted. Brelo and the others need more practice. Then there wouldn’t have been so many rounds fired for the lefties to get their phony outrage up about. These scum were going down, no matter the number of rounds fired, as long as the cops thought they were the shooters.

I guess the two dead were too doped up or too stupid to realize the cops were chasing THEM because they (the cops) figured they (the druggy morons) were the ones who fired the shots, and would thus think they (the morons) had guns, and cops would shoot at them, rather than reasoning that if we (the morons) stop, show our hands, get out of the car, we won’t be shot in error and the cops can go after the REAL shooters.

But that would involved thinking skills slightly higher than those with which a gnat is blessed.

They will never learn DON’T RUN FROM THE COPS! IT AIN’T GONNA TURN OUT GOOD!

Another story claims the beater they were driving, an old Malibu, backfired in front of the police station, which then gave the cops to believe they’d been fired upon, which brought about the (second?) chase.

If this all really started from a backfire from a beater, or a backfire from a beater involved in an earlier chase, I hate to say it, but it’s downright comical.

In close review it is not OTT, but from a quick glance people go “Wow, 100+ rounds is crazy.”

The Olympia Wa shooting was probably justified (it sure seems so initially) and one cop got off seven or eight shots in a matter of a few minutes. This involved multiple officers so the number of rounds is not that surprising when you spend time thinking about it.

Actually the number of rounds fired isn’t really that high, it just sounds high.

135 rounds – 15 from Brelo = 120

120 Rounds / the other 12 officers = 10 rounds each.

That is not an unreasonable number of rounds to be fired in a 20 second period, I can empty a 15 round mag from a Glock .40 cal in about 10 seconds and keep them in the 8 ring at 21 feet. Also, it wasn’t even 10 rounds per officer because we know that at least Miller and Brelo fired rounds through their own patrol cars windshields. The number of rounds was an artifact of the number of people shooting, not overkill as the press and media would have you believe.

I keep going back to the fact that this was a bench trial. My understanding (fuzzy and confused) is that the court could have insisted on a jury. I read on the earlier thread there was a defense motion insisting on a jury trial because otherwise AA jurors wouldn’t get a vote etc(if seated).. But here we have a judge taking it all on his own shoulders, in spite of all the recent, ahem, difficulties.
If Judge John P. O’Connell hadn’t done this, the trial would have been ( possibly) dragged on for a long time. Again, thanks AB for an understandable summary.

Not quite. The defense could have insisted on a jury (or the prosecution could, though that’s very rare) but it is also likely that this case could have been decided on a motion for summary judgment (yes there are criminal summary judgment motions) or a motion for a directed verdict based on proof of an exonerating affirmative defense.

Any motion that if granted would prevent having a useless trial is one that should be made assuming the circumstances warrant it. In some jurisdictions, all of these possible motions are rolled into one mandatory pre-trial omnibus hearing all for the purpose of avoiding a trial that is unnecessary.

The defendant (Officer Brelo) waived his fourth amendment right to a trial by jury and requested a bench trial. The prosecutor filed an objection, seeking to force Brelo into a jury trial, arguing (among other things) that Brelo needed the prosecution’s consent to waive his fourth amendment rights.

The prosecutor also filed a motion to have Brelo’s attorney removed due to conflicts of interest. In other words, the prosecutor did everything in his power to curtail the defendant’s fourth amendment protections.